Argued April 13, 2015
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 CR 772-2 -- Elaine E. Bucklo, Judge.
For United States of America, Plaintiff - Appellee: Sean Kevin Driscoll, Attorney, Office of The United States Attorney, Chicago, IL.
For Joseph Faulkner, also known as: Little Joe, Defendant - Appellant: Steve A. Greenberg, Attorney, Steven A. Greenberg And Associates, Ltd., Chicago, IL.
Before WOOD, Chief Judge, ROVNER, Circuit Judge, and SPRINGMANN, District Judge.[*]
Wood, Chief Judge.
Joseph Faulkner brings this appeal because he
believes that his rights under the Double Jeopardy Clause of the Fifth Amendment
have been violated. In 2011 Faulkner pleaded guilty to two counts of the use of
a communication facility in facilitation of a drug-related felony; he was
sentenced to a 91-month term of imprisonment on those charges. Two years later,
he--along with several other members of the Imperial Insane Vice Lords gang--was
indicted on a variety of conspiracy, firearms, and drug charges. Faulkner moved
to dismiss the new indictment because, he argued, the judge enhanced his 2011
sentence based on the same conduct that the 2013 indictment covered. Worse, he
asserted, the charges included in the 2011 indictment (which were dropped
pursuant to a plea agreement) are the same as those in the current indictment.
He thus argues that he is being " twice put in jeopardy" on the " same offence,"
as the Constitution puts it. If that were the case, he would be entitled to have
the 2013 indictment dismissed. But we conclude that it is not, and so we affirm
the district court's denial of his motion to dismiss.
In 2011 Faulkner was indicted on four counts of heroin distribution in violation of 21 U.S.C. § 841(a)(1). He later agreed to plead guilty to two counts of the use of a communication facility in facilitation of a drug-related felony, in violation of 21 U.S.C. § 843(b). Each count carried a maximum term of imprisonment of four years. See 21 U.S.C. § 843(d)(1). In exchange for the guilty plea, the government agreed to move to dismiss the original indictment. At sentencing and upon the government's motion, the court granted that motion and dismissed the original heroin distribution charges.
After an initial dispute, the government and Faulkner agreed that the applicable advisory sentencing range under the U.S. Sentencing Guidelines was 57 to 71 months for the two communication facility charges. The government nonetheless argued for an above-guidelines sentence, in part on the ground that Faulkner's criminal history category did not accurately reflect his record. See 18 U.S.C. § 3553(a)(1) (identifying " the history and characteristics of the defendant" as a sentencing factor). In support of that position, the government relied on Faulkner's admission in the plea agreement that he had engaged in heroin trafficking as part of a drug gang for many years. It asserted that the court should take these activities into account in assessing Faulkner's history and characteristics.
The district judge agreed and imposed an above-guidelines sentence of 91 months. She noted that Faulkner's official criminal history did not fully represent " the level of drug dealing that he was facilitating ... [which] was a very high level." The judge also emphasized Faulkner's violent past: " [W]hen anyone is distributing drugs, through the street gangs, there also is incumbent with that violence. And the violence is reflected in some of the past history of the defendant." She highlighted Faulkner's use of firearms, explaining that " handguns were used regularly in the course of this distribution."
In 2013, Faulkner and other members of the Imperial Insane Vice Lords were before the court on new charges. This time the indictment accused Faulkner of engaging in a racketeering conspiracy in violation of 18 U.S.C. § 1962 (Count I); conspiring to commit assault with a dangerous weapon as part of racketeering activity in violation of 18 U.S.C. § 1959(a)(6) (Count II); carrying, brandishing, and discharging a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) (Count III); and conspiring to distribute heroin, cocaine, and marijuana in violation of 21 U.S.C. § 846 (Count IX). Counts II and III specifically referred to an incident that occurred on January 15, 2010.
Faulkner moved to dismiss the indictment on double jeopardy grounds. He principally claimed that he had already been punished for the conduct described in the 2013 indictment, because the judge in his 2011 case had taken that conduct into account when sentencing him on the communication facility charges. The district court denied the motion, finding that the claim was precluded by Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995). Faulkner then timely appealed. We have jurisdiction under 28 U.S.C. § 1291 and the collateral order doctrine, which allows a criminal defendant immediately to ...